Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Tuesday, January 22, 2008

Frantz v. Hazey (9th Cir. - Jan. 22, 2008)

Maybe Alex Kozinski has changed -- albeit only a tiny little bit -- as a result of his new role as Chief Judge. And, perhaps, has only changed in the context of en banc opinions.

Regardless, if there has been a change -- and I admittedly think it's way too soon to tell -- I think I'll like it.

The "old" Judge Kozinski would typically write a blistering (and, usually, blisteringly persuasive) dissent, or concurrence, if he had something special to say to his colleagues. And that part, thankfully, hasn't changed. He still writes directly. He still takes on the other side head on. All of which is good. And which he does here, in which he writes a concurrence (joined by Judges Wardlaw, Paez, and Bea) that responds to a concurrence by Judge Gould (joined by Judges O'Scannlain, Rymer, Silverman, Callahan, and Ikuta) that adopts a starkly different view, albiet resulting in the same result, than the majority opinion.

That said, for all the similarities, and for all the (great) directness, Chief Judge Kozinski's concurrence is nonetheless, I think, a tiny bit mellower than usual. A tiny bit less harsh. A tiny bit more collegial, albeit within the context of a very targeted response. It's not a "classic" Kozinski concurrence. But is instead an older, slightly gentler, reproach.

And that's not because Alex has mellowed in his old age. He hasn't. If anything, I think the near uniform consensus is that he's gotten a bit meaner, and a fair piece more tempermental, over time. At least towards parties and their counsel.

But I think there may be at least some slight evidence that, at least with respect to his colleages, and at least in en banc decisions, there's an incipient mellowness starting to reveal itself. Subtle. Careful. And not in a way that would at all diminish the classic Kozinski response. But that's nonetheless there.

Time will tell, of course. Still, I liked what I saw here. And look for more to come.

P.S. - Please don't think I'm saying that Alex will never tee off on people in the future. Trust me: He will. You can take that one to the bank. There may nonetheless be something here, in particular cases, that's slightly different from his usual take.